Sex offender faces a test in civil court

Sunday

Nov 25, 2007 at 2:00 AM

Oliver Mackson

Goshen – Tomorrow morning, two lawyers and a judge will continue trying to figure out where Kenneth Lashway should go when he leaves a state prison in Dutchess County.Lashway, a 48-year-old high school dean and town councilman from Dutchess County, met a 15-year-old girl from Chester online nine years ago. Then he met her in person.He beat her with a belt.He performed oral sex on her.He took X-rated pictures of her.Chester town police caught him by happenstance in February 1999, when they checked a car that was parked in a part of town know as a lovers’ lane. They found Lashway with his pants around his ankles and the girl in the passenger seat. In the car, they also found a police-style baton and a plastic bag that contained a pair of silver choke collars, some chains and a pair of handcuffs.Lashway pleaded guilty in Orange County Court to sodomy and other felonies. He went to state prison for four to 12 years. He was up for parole this summer.Instead, he became one of the first people in New York to be detoured into court by a new law. It allows the state attorney general to file civil suits against sex offenders. The goal is to “manage” them, which could mean anything from mandating regular meetings with a parole officer to confinement in a mental hospital after they’ve served their prison sentences. The state went to court against Lashway in July, when he was up for parole. The next step is a conference tomorrow before acting state Supreme Court Justice Nicholas DeRosa.The law was passed earlier this year by the state Legislature. It’s still being challenged in federal court, but it’s mostly untested in the state courts. As of Oct. 18, Attorney General Andrew Cuomo had filed 84 petitions in court, seeking control over a sex offender. Most are still pending. Only one of those cases has gone the full distance to a jury trial, with a jury being asked to decide if a sex offender has a mental-health problem that needs to be treated behind the razor-wired walls of a state hospital.That one time, the jury went against the attorney general. It found that there was no imminent danger or health concern to justify depriving the sex offender of his freedom. Seven people have agreed to strict supervision by the state Division of Parole before their case went to a jury. In one case, a DNA match from an old murder sent a sex offender back to prison.So every case is still a test. The mother of the girl from Chester is hopeful that some good will come of the test that goes by the name of “Attorney General of the state of New York vs. Kenneth Lashway.”The mother, who still lives in Chester, breaks down in tears as she talks about what Lashway did to her daughter.“He beat her,” she sobs. “He beat her. I remember seeing the marks on her. I walked in on her, I said, ‘Baby, where did you get these marks on you?’ I was thinking of putting the dog down.“He called my baby ‘fresh meat.’ The worst thing about all this is that he has a daughter who is six months younger than mine. Six months younger than my baby.”The girl’s now a grown woman. She lives in New York City. She’s a college graduate. “She’s grown into a remarkable young woman,” her mother says.

THE U.S. SUPREME COURT decided 10 years ago that states could confine people like Kenneth Lashway against their will. The court found that states could do that to protect the public against sex offenders – even after they’d served their time, even if they hadn’t been charged with a new offense.The court upheld a Kansas law, pointing out that it took civil action against sex offenders whose lack of control over their behavior, coupled with a mental “abnormality,” made them a danger to the public.For years, civil confinement laws died in the lawmaking logjam that is Albany politics. But a law finally passed the Legislature this year, and Gov. Eliot Spitzer signed it in March. The law took effect on April 13. It created a legal process for confining sex offenders, but it also allowed for “civil management,” which means that a parole officer has control over anything from a sex offender’s travel to who they date.The law is being challenged in federal court by Mental Hygiene Legal Services. That’s the state agency that represents sex offenders the state is trying to confine.Steve Harkavy, the agency’s chief lawyer in New York City, concedes that since the Supreme Court decision on the Kansas law, there’s no longer a question that states can confine sex offenders. The question is how to do it, and Harkavy says that New York’s law is an example of how not to pass a law that protects the public while also balancing the constitutional rights of sex offenders.The challenge may have to be decided in a full-blown federal trial, but Harkavy won part of his argument last week. U.S. District Judge Gerard Lynch temporarily banned the state from detaining someone who’s awaiting a confinement trial, unless the state can show that person is currently dangerous. The judge also temporarily banned the state from enforcing part of the law that authorizes civil confinment for someone who’s found incompetent to be tried criminally – even if there’s “clear and convincing” evidence that the incompetent person committed a sexual crime. Lynch also dismissed some of the challenges to the law.But here’s the most profound question that Harkavay has about civil confinement: If someone like Lashway has a mental abnormality, what kind of treatment will he get if he’s locked away in a hospital?“What you’ve found in other states is that there’s been a lot of litigation over the fact that people are not getting the treatment they’re supposedly hospitalized to get,” Harkavy said. “One school of thought is that these places end up being sort of roach motels – people go in, they never go out.”

ANOTHER NOTORIOUS LOCAL sex offender is up for parole later this month: Josh Duggan, who raped two girls over several hours in 1991, in a chamber of horrors that he created in his bedroom in the Village of Goshen. Duggan’s chances for parole appear to be slim, since he’s blown off at least one scheduled interview with the state parole board.For police Chief James Watt, Duggan is a poster child for civil confinement laws. In Ulster County, it was a man named Karl Ahlers, who molested several children in the early 1980s and went into a state hospital after he was paroled, at age 72, in 2005. Statewide, there about 22,000 sex offenders. One-third of them have a Level 3 designation, meaning that they’re the most likely to repeat their crime.Watt was on patrol the day that police were called to Duggan’s house. It was the worst single crime in recent memory in the Orange County seat.“I get asked about it quite often, and how the victims are,” Watt says now. “For me, it’s been a career-lasting resonance. It’s still a concern. People still inquire about it and when he’s going to be out on parole, and what the conditions are going to be.”If it were Watt’s call to make, he says, “Keep him in state prison.” But even if Duggan “maxes out,” he’ll be out of prison in 2012, when he’s 50. Lashway’s maximum sentence is up in 2011, and even the case that’s pending against him now, in state Supreme Court, offers no guarantee that he’ll be confined.The mother of Lashway’s victim is now a social worker. She went back to school, she says, partly as a way of coping with her family’s trauma. She is not a vengeful person. But she is also a mother, whose teen-age girl was the victim of a predator. Lashway said he regarded the girl as a willing partner, even though she was two years younger than the legal age of consent in New York.“It’s wrong to let such an evil, wicked man loose,” the mother says. “I pity him. But by the same token, it’s like, ‘How do we let a man like this loose on the street?’”

Earlier this year, a new law took effect that allows New York state to “manage” sex offenders after they’re released from prison. Here’s a summary of how it works:œConvicts – not necessarily all charged with sexual crimes – are identified by state criminal justice agencies as “sex offenders requiring civil management.”œThe state Office of Mental Health evaluates prisoners. If they meet the criteria of a sex offender who bears watching, the Office of Mental Health notifies the attorney general’s office.œThe state attorney general files a civil suit, making the case in state Supreme Court that the prisoner needs to be monitored by the state after being released from prison.œIf a judge finds “probable cause” to believe that the person is a sex offender, the case proceeds to a civil trial, with the state trying to prove that the prisoner has a “mental abnormality” that makes it likely he’ll commit sex offenses after being released.œIf the jury decides the prisoner is a sex offender who’s likely to commit more crimes, the judge can confine the prisoner to a state mental hospital, or order strict supervision outside an institution – a regimen described in criminal justice circles as “super-parole.”